“The Law has to be seen to be done”: Language, Ideology and Ritual in The Hague.

The International Criminal Court (ICC) is a permanent international tribunal that prosecutes individuals for crimes against peace, war crimes, breaches of humanitarian laws, crimes against humanity and genocide. In 1993, the International Criminal Tribunal for the former Yugaslavia (ICTY) was formed and is a temporary tribunal to try individuals for crimes committed during the war in the former Yugoslavia since 1991. I visited both courts between the 2nd and 4th of April 2014 and collected data through observations and questions asked during the formal presentations that were given. In this essay I will discussing my observations from my visit and will focus upon the language used and the ritual shown, which reflects the message and ideology the ICC and ICTY wishes to promote.

After going through security and putting all your belongings in a locker you are shown the way to the public gallery. After walking through a non-descript staircase you enter into the silent public gallery through a set of double-doors. You collect a pair of headphones and take a seat; a guard is at the back of the room watching you as you settle down. The seats are in rows, and a blind is pulled down over the bulletproof screen to show that the court would soon continue. To me, it felt like waiting for curtain call at a theatrical performance. Once the session had started, you chose your language that you wish to hear the proceedings in. The court has live translations and often deals with multiple languages at a time. This makes responses between those active in the courtroom slow and there were often questions asked to redefine what was meant, especially when colloquial terms were used. A visitor is also given a copy of the ‘ICC Rules of Decorum’ and if these are broken the guards present will actively reprimand any individual. Following these rules meant I had to sit still, be silent, refrain from gesturing and previously given in all my possessions beforehand and I had to rise from my seat when the judges entered the room. There is no explanation to the public what is happening and you have no idea how long the proceeding will take and if you are allowed to leave.

A copy of the plan of the gallery given to visitors.

A copy of the rules given to all visitors when entering the public gallery.

It was not the experience I had expected. We were welcomed warmly when arriving at the ICC and told how important it was that visitors came to see the work they were doing. I wondered why it was so important? As a member of the public, what was my role? As I was not actively participating, but was told I was invaluable to the ICC’s process. Nigel Eltringham (2012) focuses on the ‘silent, validating public’ in his work on the International Criminal Tribunal for Rwanda. He discusses how the court spectators are not incidental, but in fact they are integral, as the presence of the public is made explicit in courtroom proceedings. Despite the efforts of the court to encourage visitors, sessions are usually only watched by a hand few of people. In fact, the statistics gathered by Eltringham show on average, there were just six people present in the gallery in 2008. I felt particularly restrained as a viewer due to the rules handed to me, in this article Eltringham describes the public as ‘docile bodies’ (p.430) in the gallery. The way to create these docile bodies is to make the public believe that the courtroom is a privileged, respected space.

When entering the gallery, the public then embodies a ‘liminal status as a spectator’ (p.431). This liminality relates the theory developed by Arnold Van Gennep (1909). Van Gennep focused on liminality in terms of ritual and rites of passage. He noted that each rite of passage had three zones. The first, the rite of separation is often a break from usual societal life. The second is the liminal rite, which involves the creation of the ‘tabula rasa’, where previous ideas about life that are taken for granted are stripped away. Finally, there are the rites of incorporation back into daily life. It is the second stage that is particularly relevant when understanding the public gallery and those within it. A new set of rules are there to be followed and you are very much stripped of your identity and individual agency due to this. Therefore the gallery could easily be seen as a liminal zone. Within this zone, I became a part of certain rituals of the common law system, such as rising for the judges. This obviously reflects their status in the courtroom and reinforces my place as an anonymous viewer. Eltringham uses Bell (1992) to show that ‘ritualisation, as a strategy of differentiation is rooted in a distinctive interplay of a socialised body and the environment it structures’ (p. 432). It was obvious that the environment of the public gallery affected the agency of bodies and forced us to act in a particular way that suited the courtroom, which had ‘privileged differentiation’ (Eltringham, 2012: 432).

I began to wonder if I was witnessing justice? The way the active participants of the courtroom interacted with each other and the space with ritualised and practiced, like a performance. Of course every performance should have an audience, and I began to think of myself as exactly that. We had the privilege of having a discussion with a barrister David Hooper QC who is counsel for William Ruto who is involved in the case in the Republic of Kenya. When I posed the concept to him that nothing can be universally applied to every human, he confidently stated that every human has a concept and a need for justice and this is what was occurring in the ICC. According to various articles, this sense of justice does not reach the victims, especially when they are trying to rebuild their lives. Stover (2005) writes that the witnesses used in the trial at the ICTY felt abandoned and that there was a lack of regard for their well-being. He discovered that there was a large gap between the expectations and experiences of the witnesses regarding the legal justice system. In his conclusion he noted that testifying a war criminal is not the same thing as achieving justice and social healing.

I believe that during the presentations given at the ICC, Stover’s difference between justice and a successful trial was not acknowledged. Discussion of the victims and their rights was brought up in a formal Q&A session with the Officer of the Prosecutor at the ICC. Despite not describing any specific outreach programmes the ICC were involved in, there was the expectation that prosecuting could cause a ‘calming effect’ on those areas. He stated that we were all a part of an international community. It was important that the victims have the sentiment that ‘someone, somewhere is with them’. The ICC is restoring the order and ‘giving hope to the victims that they are not alone”. The officer of the prosecutor then stated that he ‘thinks people are believing that’. I observed that the language used during this presentation was almost spiritual. During the presentation, phrases like the court is an ‘answer to the pleas of victims’ and ‘for the rights of the victims’ were said. This made me think that the court was acting as a higher power and giving those who believe hope. The final statement given in the presentations was that they were pleased to see us, to get us on board and that we must ‘spread the message to others’. I was unsure exactly what this message was; it was certainly something deeper than just the legal requirements of the court.

Due to the nature of my fieldwork project, which was mainly observation, I found that I asked many questions which my informants alone could not answer. As I was treated like a visitor in the courts, I used the fieldwork method of participant observation (Malinowski, 1922). This method of course requires long term fieldwork, of which I did not have the luxury to undertake. If I had however, I feel as if some of the questions that arose such as ‘what is my role here in the public gallery?’ may have been answered. Dewalt and Dewalt (2002) discuss how anthropologists can train themselves to be more acute, sensitive observers and I feel I developed that skill during this fieldwork.

To conclude, the ICC is clear in its presentations of its mission and aim. However, there was a distinct gap of knowledge between what they do in The Hague and how this affects the victims directly. Research has shown that the victims have felt severely let down by the system of international law in The Hague. The international courts also put a lot of effort into the encouragement of visitors that makes for an interesting analysis. It is clear there is a strong belief in a universal sense of justice and a wide international community, which seeks to support one another. It is said, that the focus is on the victims of the crimes committed. However, it is seen that the focus is on how the international community understands the ICC and that the triumphs of their legal system are widely spoken about and celebrated.